This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

18105 

Vol. 72, No. 69 

Wednesday, April 11, 2007 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 902 

50 CFR Part 270 

[Docket No. 040720212–6238–02; I.D. 

040204A] 

RIN 0648–AS09 

Fish and Seafood Promotion Act 

Provisions; Seafood Marketing 

Councils 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce. 

ACTION: Final rule. 

SUMMARY: In response to renewed 

fishing industry support for marketing 

and promotion-related activities, NMFS 

enacts regulations to implement the 

Fish and Seafood Promotion Act (FSPA) 

of 1986 for the establishment, 

organization, and operation of Seafood 

Marketing Councils (Councils). Council 

marketing and promotion plans will be 

designed to increase the general demand 

for fish and fish products by 

encouraging, expanding, and improving 

the marketing and utilization of fish and 

fish products both in domestic or 

foreign markets, through consumer 

education, research, and other 

marketing and promotion activities. The 

intent of this rule is to increase benefits 

from domestic fisheries while 

maintaining consistency with NMFS’ 

stewardship goals and mission 

statement. 

DATES: Effective May 11, 2007. 

ADDRESSES: Copies of this rule, its 

Regulatory Impact Review (RIR), and 

Initial Regulatory Flexibility Analysis 

(IRFA) are available from Christopher 

M. Moore, Chief, Federal-State Division, 

Office of Sustainable Fisheries, NMFS, 

1315 East West Highway, Silver Spring, 

MD 20910. The Final Regulatory 

Flexibility Analysis (FRFA) consists of 

the IRFA, public comments and 

responses, and the summary of impacts 

and alternatives contained in the 

Classification section of the preamble of 

this final rule. 

Comments regarding the burden-hour 

estimates or other aspects of the 

collection-of-information requirements 

contained in this final rule should be 

submitted to Christopher M. Moore at 

the address above or fax to (301) 713– 

0596 and to David Rostker by e-mail at 

DavidlRostker@omb.eop.gov, or fax to 

(202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Gordon J. Helm, NMFS, telephone: (301) 

713–2379 or E-mail: 

Gordon.J.Helm@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

This final rule enacts regulations that 

implement the Fish and Seafood 

Promotion Act (FSPA) of 1986 (16 

U.S.C. 4001 et seq.) to establish and 

operate Seafood Marketing Councils 

(Councils) in order to promote the 

consumption of domestically harvested 

seafood. A proposed rule requesting 

public comment on this action 

published in the Federal Register on 

January 24, 2006 (71 FR 3797). Public 

comments were accepted through 

February 23, 2006. A full discussion of 

the background of this rule was 

presented in the preamble to the 

proposed rule for this action and is not 

repeated here. 

In summary, NMFS issued a final rule 

in 1989 enacting the FSPA, as it pertains 

to Councils, for one or more species of 

fish or fish products. The FSPA 

permitted the creation of Councils 

under a set of guidelines established by 

the Secretary of Commerce (Secretary), 

who delegated authority to NMFS, to 

establish a National Seafood Marketing 

Council (National Council). This 

National Council was authorized to 

fund applicants’ referenda to establish 

and terminate species-specific 

marketing councils. However, no 

species-specific marketing councils 

were established and the National 

Council was disbanded. In 1996, the 

regulations implementing the FSPA 

were removed from the Code of Federal 

Regulations (CFR) as part of the 

government-wide Presidential 

regulatory reform effort. Although the 

implementing regulations were 

withdrawn from the CFR, the FSPA 

remains in effect. 

The seafood promotion council rule 

addresses a market failure that reduces 

consumer demand for seafood as a 

result of the dissemination of partial, 

misleading or faulty information to 

consumers. In reality, no consumer can 

have perfect information about a 

seafood product. However, the 

dissemination of significantly incorrect 

information about a product can 

substantially lower consumer demand. 

In the case of seafood, this could reduce 

consumption of an important healthbeneficial food. While the role of the 

federal government is not to promote 

seafood, it does have a responsibility to 

the consumer to ensure that the 

information presented to them is 

accurate and scientifically valid. The 

Secretary of Commerce or designee on 

the Seafood Promotion Council has the 

responsibility of approving or rejecting 

proposed marketing plans based on the 

accuracy and scientific validity of the 

information presented to the public. 

An example of a case where partial 

information leads to a substantial 

reduction in the consumer demand for 

a seafood product includes recent 

marketplace confusion over 

contaminants such as mercury in 

seafood. The Food and Drug 

Administration and industry have 

promoted the health benefits of omega– 

3 fatty acids, but consumers also hear 

that many of the fish highest in omega– 

3 fatty acids also generally contain the 

higher levels of contaminants. This 

leads to consumer confusion over the 

degree to which the relative health 

benefits exceed the risk from 

contaminants and may result in 

consumers diverting their demand for 

protein to other products that may 

provide fewer health benefits or carry 

different health risks. While the seafood 

industry could tackle this imperfect 

information market failure on its own 

through promotional campaigns and 

consumer education, opponents could 

counter that the industry action is ‘‘self 

serving.’’ To counter this perceived 

conflict of interest, the Federal 

government can offer, through the 

Seafood Promotion Act, a seal of 

approval to assure consumers that the 


cprice-sewell on PROD1PC71 with RULES
18106 Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 

information being offered is accurate 

and reliable. 

Industry has expressed to NMFS 

interest and support for seafood 

marketing and promotion-related 

activities. Niche marketing programs 

have been initiated by both the Pacific 

salmon harvesters in Alaska and by the 

Wild American Shrimp organization in 

the southern Atlantic and Gulf of 

Mexico states. Additional interest has 

been expressed by U.S. tuna processors 

who are also facing declining market 

shares due to foreign competition. In 

response to industry requests, NMFS 

promulgates regulations providing the 

foundation for the establishment, 

organization, and administrative 

practices of the Councils. 

Application to Establish A Council 

An application package submitted to 

NMFS to establish a Council must 

consist of the following information: (1) 

an application requesting NMFS to 

establish a Council; (2) a list of sector 

participants who are eligible to vote in 

the referendum; (3) a proposed charter 

under which the proposed Council 

would operate; and (4) an IRFA and/or 

other analytical documentation 

addressing the requirements of the 

Regulatory Flexibility Act, Executive 

Order 12866, National Environmental 

Policy Act, and other information which 

may include, but is not limited to, an 

analysis of the primary, secondary, and 

tertiary affects of increasing demand for 

seafood. This information will be used 

by NMFS to determine if the proposed 

council or its marketing program is 

consistent with NMFS conservation 

goals, national standards, and other 

guidelines. The applicant will also have 

to demonstrate to NMFS that the 

council or its marketing program is 

consistent with Federal standards and 

guidelines on nutrition and health. For 

detailed information regarding 

application requirements, see the 

preamble to the proposed rule 

published January 24, 2006. 

NMFS will determine if the 

application package is complete and 

complies with all of the requirements 

set forth in the implementing 

regulations, the FSPA of 1986, and other 

applicable law and make an initial 

decision on the application within 180 

days of receipt. 

Referendum on Adoption of Proposed 

Charter and Council Appointments 

NMFS will conduct a referendum on 

the adoption of the proposed charter 

within 90 days of its initial affirmative 

decision. The referendum will be 

conducted among all sector participants 

that meet the requirements for eligibility 

to participate in the referendum, as 

identified in the proposed charter. The 

vote may be made by any responsible 

officer, owner, or employee representing 

a sector participant. The referendum to 

establish a Council would pass if votes 

cast in favor of the proposed charter 

constitute a majority of the sector 

participants voting in each and every 

sector. Further, the majority must 

collectively account for, in the 

preceding 12–month period, at least 66 

percent of the value of the fish and fish 

products described in the proposed 

charter that were handled during this 

period, in that sector, and by those who 

met the eligibility requirements to vote 

in the referendum. If the referendum 

passes, NMFS will establish a Council 

and approve the proposed charter. 

NMFS will initially pay all costs 

related to the conduct of the referendum 

to establish a Council. Once an 

application has been approved, NMFS 

will estimate the cost of conducting the 

referendum, notify the applicants, and 

request that they post a bond or provide 

other applicable security, such as a 

cashier’s check, to cover costs of the 

referendum. After the referendum has 

been conducted, NMFS will inform the 

applicants of the exact cost. If the 

referendum is approved and the 

proposed charter is adopted, the 

Council will be required to reimburse 

NMFS for the total actual costs of the 

referendum within 2 years after 

establishment of the Council. This 

amount would be paid for from 

assessments collected by the Council. If 

a referendum fails to result in 

establishment of a Council, NMFS 

would immediately recover all expenses 

incurred from the bond or security 

posted by applicants. 

Within 30 days after a Council is 

established, NMFS will solicit 

nominations for Council members from 

the sector participants represented on 

the Council in accordance with the 

approved charter. The members of each 

Council should be individuals who, by 

reason of their occupational or other 

experience, scientific expertise, or 

training, are knowledgeable with regard 

to the activities of the sector which the 

individual would represent on the 

Council. NMFS will appoint the 

members of the Council from among the 

nominees within 60 days. The term for 

members would be 3 years. Council 

members will serve without 

compensation but would be reimbursed 

for their reasonable expenses incurred 

in performing their duties as members 

of the Council. 

Continued Operation of a Council 

Continued operation of a Council is at 

the discretion of NMFS and subject to 

NMFS’ annual review of a market 

assessment prepared by the Council and 

evaluation of Council performance. 

Increases in product prices will not be 

the sole criteria for determining the 

effectiveness of a marketing program. 

The Council must demonstrate that the 

marketing plan will not adversely 

impact those fisheries for which 

conservation and management measures 

are necessary to prevent overfishing and 

rebuild overfished stocks, i.e., the 

market plan should be designed to 

increase profits rather than increase 

harvest. The marketing plan should also 

demonstrate that conservation and 

management efforts in other fisheries 

are not adversely affected, but NMFS 

may use the primary, secondary, or 

tertiary impacts in evaluating whether 

the Council should be allowed to 

continue operating. Where measures 

have been implemented to reduce the 

overall harvest in a fishery, the 

marketing plan should clearly identify 

how stock conservation harvest capacity 

reduction would not be adversely 

impacted. Council support of the 

regional fishery management council’s 

adoption of dedicated or controlled 

access programs, for example but not 

limited to programs such as Individual 

Fishing Quota, moratorium on new 

entrants into a fishery, and other effort 

control measures, are programs that 

comply with this standard. NMFS 

retains the authority to determine if the 

continued operation of a Council would 

be in the public interest. 

Councils will be required to: (1) meet 

performance standards approved by 

NMFS that demonstrate that marketing 

and promotion programs are effective in 

increasing consumer demand for 

species-specific seafood products; (2) 

conduct market assessments based on 

economic, market, social and 

demographic, and biological 

information as deemed necessary by 

NMFS; (3) submit annual plans and 

budgets for species-specific marketing 

and promotion plans; (4) submit 

progress reports on implementation of 

the marketing and promotion plans; and 

(5) submit financial reports with respect 

to the receipt and disbursement of funds 

entrusted to it. NMFS will require a 

complete audit report to be conducted 

by an independent public accountant 

and submitted to NMFS at the end of 

each fiscal year. 

Assessments 

Councils will be funded through 

voluntary assessment of the industry 


cprice-sewell on PROD1PC71 with RULES
Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 18107 

represented on the Councils. 

Assessments will be imposed on sector 

participants in the receiving sector or 

the importing sector or both as specified 

in the approved Council charter. 

Assessment rates will be based on value 

that may be expressed in monetary units 

or units of weight or volume. Once a 

participant declines to pay an 

assessment, or elects not to participate 

in a Council, no future assessments will 

be imposed. With NMFS’ concurrence, 

a Council will establish the applicable 

assessment for those seeking to rejoin or 

participate in a Council at a future time. 

The Council will notify a sector 

participant subject to assessment that 

the assessment is due. The notification 

informs the participant of the right to 

seek review of the assessment by filing 

a written petition of objection with 

NMFS at any time during the time 

period to which the assessment applies 

in accordance with the procedures in 

§ 270.19. The notification also informs 

the participant of the right to request a 

refund of the assessment and provides 

deadlines for submission of the request. 

Persons subject to an assessment will 

be required to pay the assessment on or 

before the date due, unless they have 

demanded a refund or filed a petition of 

objection with NMFS under § 270.21. 

However, a person who has demanded 

a refund under § 270.22 or filed a 

petition of objection under § 270.21 may 

submit proof of these actions in lieu of 

payment. In the case of a petition of 

objection, NMFS will inform the 

Council and the petitioner of its finding 

at which time petitioner must pay the 

revised assessment if applicable. 

Pursuant to 16 U.S.C. 4014, any sector 

participant who pays an assessment 

under the FSPA may demand and must 

promptly receive from the Council a 

refund of the assessment. A demand for 

refund must be made in accordance 

with procedures in the approved charter 

and within the time limits prescribed by 

the Council and approved by NMFS. 

Procedures to provide such a refund 

will be established before any such 

assessment will be collected. Once a 

refund has been requested by a sector 

participant and paid by the Council, 

that sector participant will no longer 

participate in a referendum or other 

business of the Council during the 

remainder of the assessment rate period. 

However, if assessments are paid during 

a future assessment rate period and no 

refund is requested, that sector 

participant will be able to again 

participate in a referendum or other 

business of the Council. 

Quality Standards 

Each Council may develop and 

submit to NMFS for approval, or upon 

the request of a Council, NMFS will 

develop, quality standards for the 

species of fish or fish products 

described in the approved charter. Any 

quality standard developed should be 

consistent with the purposes of the 

FSPA. A quality standard should be 

adopted by a Council by a majority of 

its members following a referendum 

conducted by the Council among sector 

participants of the concerned sector(s). 

In order for a quality standard to be 

brought before Council members for 

adoption, the majority of the sector 

participants of the concerned sector(s) 

must vote in favor of the standard. 

Furthermore, according to the best 

available data, the majority must 

collectively account for, in the 

preceding 12–month period, not less 

than 66 percent of the value of the fish 

or fish products described in the charter 

that were handled during such period in 

that sector by those who meet the 

eligibility requirements to vote in the 

referendum. Councils may develop 

quality standards establishing the 

criteria for the fish or fish products 

being promoted. The Council will 

submit a plan to conduct the 

referendum on the quality standards to 

NMFS for approval at least 60 days in 

advance of such referendum date. 

An official observer appointed by 

NMFS will be allowed to be present at 

the ballot counting and any other phase 

of the referendum process, and may take 

whatever steps NMFS deems 

appropriate to verify the validity of the 

process and results of the referendum. 

Quality standards developed must 

meet or exceed the U.S. Food and Drug 

Administration§ s minimum 

requirements for fish and fish products 

for human consumption and must be 

consistent with applicable standards of 

the U.S. Department of Commerce 

(NOAA) or other recognized Federal 

standards and/or specifications for fish 

and fish products. 

Dissolution of a Council 

In order to terminate a Council, at 

least three sector participants in any one 

sector must file a petition with NMFS. 

The petition should be accompanied by 

a written document explaining the 

reasons for the petition. If NMFS 

initially determines that the petition is 

accompanied by the signatures, or 

corporate certifications, of no less than 

three sector participants in the sector 

who collectively accounted for, in the 

preceding 12–month period, not less 

than 20 percent of the value of the fish 

or fish products that were handled by 

that sector during the period, NMFS 

within 90 days after the initial 

determination, will conduct a 

referendum for termination of the 

Council among all sector participants in 

that sector. 

If the referendum votes which are cast 

in favor of terminating the Council 

constitute a majority of the sector 

participants voting and the majority, in 

the preceding 12–month period, 

collectively accounted for not less than 

66 percent of the value of such fish and 

fish products the that were handled 

during that period by the sector who 

filed the petition, NMFS will by order 

terminate the Council effective as of a 

date by which the affairs of the Council 

should be concluded. 

Cost of Referendum 

NMFS will initially pay all costs of 

this referendum. However, prior to 

conducting the referendum, NMFS will 

require petitioners to post a bond or 

other security acceptable to NMFS in an 

amount which NMFS determines to be 

sufficient to pay any expenses incurred 

for the conduct of the referendum. 

If a Council is terminated, NMFS, 

after recovering all expenses incurred 

for the conduct of the referendum, will 

take action as is necessary and 

practicable to ensure that moneys 

remaining in the account established by 

the Council are paid on a prorated basis 

to the sector participants from whom 

those moneys were collected. If a 

referendum fails to result in the 

termination of the Council, NMFS will 

immediately recover the amount of the 

bond posted by the petitioners. 

If the amount remaining in the 

Council account is insufficient for 

NMFS to recover all expenses incurred 

for the conduct of the referendum, 

NMFS will recover the balance of the 

expenses from the petitioners that 

posted a bond. 

Comments and Responses 

Sixteen commenters provided 15 

comments during the comment period 

for the proposed rule for this action. 

Commenters included commercial and 

recreational fishermen, processors, 

importers, distributors, marketers, 

senior scientists, environmental nongovernmental organizations, and 

concerned citizens. 

Comment 1: Several commenters were 

concerned that the establishment of 

Seafood Marketing Councils would 

promote over-fishing or favor the 

commercial industry at the expense of 

recreational fishing opportunities. Some 

of the species listed as candidates for a 

marketing program (e.g., some groupers, 


cprice-sewell on PROD1PC71 with RULES
18108 Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 

snappers, cod, and flatfish) are already 

overexploited. 

Response: Seafood Marketing 

Councils and their marketing plans are 

required to comply with NMFS’

conservation and stewardship goals and 

objectives. Marketing Councils will not 

play any role in the management of 

fisheries through the setting of annual 

quotas, limitations on fishing effort or 

the allocation of fishery resources. 

Rebuilding plans for overexploited 

stocks will not be affected by this rule. 

Comment 2: A number of commenters 

emphasized the importance of educating 

the public about the nutritional benefits 

of seafood and the risks associated with 

mercury and other contaminants. 

Response: NMFS agrees that 

educating the public on the benefits and 

risks of eating seafood is important. The 

establishment of Seafood Marketing 

Councils is an opportunity to provide 

the public with accurate information 

about contaminant risks for vulnerable 

sub-populations and to document the 

health benefits associated with 

consuming seafood. 

Comment 3: Several commenters were 

concerned that NMFS would intrude in 

the industry§ s marketing decisions. 

Commenters suggested that NMFS 

should not review or be expected to 

approve marketing plans developed by 

private sector experts. Additionally, 

they were concerned that Federal 

intervention in marketing efforts would 

strip away free market abilities. 

Response: This rule is intended to 

create a voluntary program that operates 

under the control of its participants. 

NMFS’ role is to ensure that 

scientifically accurate information is 

provided to consumers of seafood 

products and to ensure the smooth 

functioning of the Marketing Councils. 

Marketing Councils will improve the 

transmission of clear and accurate 

information about seafood products to 

consumers and thereby enhance free 

market capabilities to allocate and price 

seafood products. 

Comment 4: Several nongovernmental organizations emphasized 

the need for an Environmental Impact 

Statement (EIS). 

Response: Based on preliminary 

analyses under the National 

Environmental Policy Act (NEPA), 

NMFS has concluded that preparation 

of an EIS is not necessary at this time 

because the effort is primarily 

educational and informational in nature. 

The promotional nature of the effort is 

such that it will not affect individually 

or cumulatively the quality of the 

human environment, or impact 

managed species, essential fish habitat, 

or species or their habitat protected 

under the Endangered Species Act (16 

U.S.C. 1531 et seq.). Further analysis 

under NEPA will be required before any 

Seafood Marketing Council is 

considered for approval by the 

Secretary. There is nothing in this 

action that would establish a precedent 

about future proposals. 

Comment 5: Two non-governmental 

organizations were concerned that the 

Seafood Marketing Councils may raise 

seafood prices for U.S. consumers. 

Middle- to low-income families would 

be less likely to purchase seafood and 

receive its nutritional benefits. 

Response: The market for fish 

products is diverse and complex. An 

increase in price for one commodity 

does not translate into an increase 

across all commodities. One 

commodity’s price increase could result 

in a price decline for other seafood 

products. Many lower cost fish product 

alternatives will still exist for 

consumers even with a price increase in 

one product. 

Comment 6: One commenter 

questioned why the regulations to create 

Seafood Marketing Councils were 

previously removed. 

Response: The Fish and Seafood 

Promotion Act (FSPA) initially 

established a National Seafood Council 

funded by Congress. When the 

Congressional funds were exhausted, 

the seafood industry did not choose to 

continue the funding for the National 

Seafood Council, and it was deactivated. 

During that time, seafood product prices 

remained at premium levels and 

industry did not feel the need to fund 

generic marketing programs. Since the 

1990s, the advance of aquaculture 

production worldwide has contributed 

to a decline in general prices for seafood 

products. Today, domestic commercial 

seafood harvesters are facing a financial 

crisis. Therefore, there is some renewed 

industry interest and support for 

seafood marketing and promotionrelated activities. 

Comment 7: Several commenters were 

concerned that the amount of required 

analytical documentation to apply is too 

burdensome for the industry, and that 

there would be little incentive for 

industry to participate in this program. 

Response: The amount of analysis 

will vary according to the design and 

composition of each potential Seafood 

Marketing Council. NMFS staff will 

coordinate with applicants in the 

development of specific analysis 

requirements, subject to NMFS review 

and approval. 

Comment 8: Some commenters were 

concerned about the associated costs to 

NMFS during a time when the agency 

struggles with meeting costs of 

established programs. They requested 

that NMFS funds be allocated for issues 

like conservation and education, rather 

than seafood promotion. 

Response: Expenses of operating the 

Marketing Councils are to be borne 

entirely by Council participants. These 

are voluntary, self-financed, industrybased, marketing programs that will not 

interfere with NMFS’ ability to meet its 

mission goals. 

Comment 9: One association 

suggested that the criteria for a 

referendum should be the participation 

of companies representing greater than 

fifty percent of the industry’s revenue 

rather than the participation of more 

than half of the industry’s participants. 

Response: According to the FSPA, the 

majority of sector participants that vote 

in favor of establishing the Marketing 

Council must represent 66 percent of 

the value of the fish and fish products 

produced in the last six months by the 

sector petitioning to create a Marketing 

Council. 

Comment 10: One commenter 

suggested that foreign seafood market 

development should not be among the 

responsibilities of the Marketing 

Councils, since this function is already 

filled by the U.S. Department of 

Agriculture. 

Response: The focus of the Marketing 

Councils is on the domestic marketing 

of seafood. They are not intended to 

compete with other federal or state 

programs that have jurisdiction for 

international marketing of seafood 

products. 

Comment 11: One commenter 

suggested that the rule include a 

provision that allows small, regional 

marketing organizations to organize 

under a Seafood Marketing Council if 

they so choose. 

Response: Existing regional marketing 

organizations have a voice in the 

formation of any new Councils through 

the referendum process. 

Comment 12: One commenting 

organization was concerned that the 

rule promotes a singular species 

message that may conflict with their 

broader multi-species message. Another 

commenter was concerned that the 

Marketing Councils would exclude 

some participants or finance the 

promotion of one type of seafood at the 

expense of another. 

Response: Existing regional marketing 

councils can petition to form multispecies Councils. The merits of each 

potential Marketing Council will be 

considered on a case-by-case basis. 

Comment 13: One commenting group 

was opposed to voluntary participation. 

If someone decides not to vote in the 

referendum, that person will not be 


cprice-sewell on PROD1PC71 with RULES
Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 18109 

assessed even if the majority of other 

sector participants agree to the 

formation of a Seafood Marketing 

Council. In their view, if a Marketing 

Council is formed for a particular fish or 

fish product, assessments should be 

required of all sector participants. 

Response: Recent decisions by the 

U.S. Supreme Court (Johanns v. 

Livestock Marketing Association; 544 

U.S. 550; 2005 U.S. LEXIS 4343), while 

not specifically addressing voluntary 

participation in Seafood Marketing 

Councils, strongly indicated that a 

voluntary Marketing Council program 

would be preferable to mandatory 

participation in future councils. 

Comment 14: One commenter 

suggested that the quality seal should 

not be used as an eco-label; this 

perception could be confusing to the 

public. 

Response: The criteria supporting a 

quality seal will be subject to approval 

by the Secretary, and made known to 

the public. A quality seal will not be 

taken to mean environmentally friendly. 

Comment 15: Several organizations 

believe the rule is inconsistent with 

NOAA§ s goal of decreasing the seafood 

trade deficit. They suggested that by 

allowing importers to participate in the 

Marketing Councils, NMFS would be 

providing an indirect subsidy for 

imported seafood, thus undermining a 

program such as offshore aquaculture 

that was intended to reduce U.S. 

dependence on seafood imports. 

Response: The establishment of 

Seafood Marketing Councils will not be 

a Government subsidy to the 

commercial fishing industry, either 

foreign or domestic, since all costs will 

be funded by the Marketing Council’s 

participants. It is not expected to 

contribute to the seafood trade deficit. 

Changes From the Proposed Rule 

Pursuant to the Paperwork Reduction 

Act (PRA), part 902 of title 15 CFR 

displays control numbers assigned to 

NMFS information collection 

requirements by the Office of 

Management and Budget (OMB). This 

part fulfills the requirements of section 

3506(c)(1)(B)(I) of the PRA, which 

requires that agencies display a current 

control number assigned by the Director 

of OMB, for each agency information 

collection requirement. This final rule 

codifies OMB control numbers for 

0648–0556 for § 270. 

Under NOAA Administrative Order 

205–11, 07/01, dated December 17, 

1990, the Under Secretary for Oceans 

and Atmosphere has delegated authority 

to sign material for publication in the 

Federal Register to the Assistant 

Administrator for Fisheries, NOAA. 

Classification 

This final rule has been determined to 

be significant for purposes of Executive 

Order 12866. 

This final rule contains a collectionof-information requirement subject to 

the Paperwork Reduction Act (PRA) and 

which has been approved by OMB 

under control number 0648–0556. The 

information collection requirements 

contained in this final rule can be 

broadly categorized into two categories: 

(1) Information required of an 

individual or organization applying for 

consideration to form a Council, and (2) 

information required of a formed and 

operating Council. Information required 

of an individual or organization 

applying for consideration to form a 

Council, consists of an ‘‘application for 

charter’’ that is composed of three 

sections: petition, proposed charter, and 

a list of eligible referendum 

participants. Public reporting burden for 

this portion of the collection 

requirement in 50 CFR part 270 is 320 

hours in total, with an average of 80 

hours to develop a petition, 200 hours 

to develop a proposed charter, and 40 

hours to develop a list of eligible 

referendum participants. All other 

information requirements in the final 

rule are imposed on the Councils, once 

they are established. The estimated 

reporting time for these information 

requirements varies from 1 to 120 hours 

per response. Council submission of an 

annual plan, an annual budget, and an 

annual financial report are estimated at 

120 hours each for a total of 360 hours. 

Council submissions of semi-annual 

progress reports are estimated at 40 

hours twice a year, notice of 

assessments at 20 hours once a year, list 

of Council nominations following a 

favorable referendum at 20 hours once 

a year, and meeting notices at 1–2 hours 

once a year. Other submissions are 

optional and are dependent upon the 

operation of a particular Council and its 

participants. For instance, Council 

submission of a plan to conduct a 

referendum on development of quality 

standards is estimated at 40 hours with 

no more than annual frequency. 

Additionally, assessed participants of a 

Council submission of a petition of 

objection and/or request for refund is 

estimated at 2 hours each no more than 

6 times a year. These estimated 

reporting times include the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. The total time estimate 

is 1,127 hours. The total annual cost 

burden to respondents is expected to be 

$4,700 based on the need for outside 

auditing of Seafood Marketing Council 

financial records. Start up costs are 

$3,200 and annual operating costs are 

$1,500. Send comments regarding these 

burden estimates or any other aspects of 

the data collection to NMFS (see 

ADDRESSES) and by e-mail to 

DavidlRostker@omb.eop.gov, or fax to 

(202) 395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection-of-information displays a 

currently valid OMB control number. 

Final Regulatory Flexibility Analysis 

NMFS prepared this FRFA which 

incorporates the Initial Regulatory 

Flexibility Analysis (IRFA) published in 

the Federal Register on January 24, 

2006 (71 FR 3797). The IRFA is not 

repeated here in its entirety. The need 

for and the objectives of the rule are 

explained in the SUMMARY and 

SUPPLEMENTARY INFORMATION sections of 

the proposed rule and this final rule. 

Description of and Estimate of the 

Number of Small Entities to Which the 

Final Rule Will Apply 

The potential universe of entities 

affected by this action includes all 

harvesters, importers, marketers, and 

processors of seafood. With the 

exception of a small number of catcherprocessor vessels, most harvesters are 

identified as small entities under the 

Regulatory Flexibility Act meeting a size 

standard of less than $4.0 million in 

gross receipts. Importers and marketers 

are characterized as small if the number 

of employees working in a typical pay 

period number are 100 or fewer, while 

seafood processors employing 500 

people or less are considered small. A 

Council could be made up of any 

combination of small or large firms 

depending upon the sector or sectors of 

a particular fishery the Council is 

representing. NMFS statistics indicate 

that there are approximately 17,679 

harvesters, 935 processing plants, and 

2,446 wholesale and marketing 

establishments that could be affected by 

this proposed rule. 

Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

The information collection 

requirements contained in this final rule 

can be broadly categorized into two 

categories: (1) Information required of 

an individual or organization applying 

for consideration to form a Council, and 


cprice-sewell on PROD1PC71 with RULES
18110 Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 

(2) information required of a formed and 

operating Council. Information required 

of an individual or organization 

applying for consideration to form a 

Council, consists of an ‘‘application for 

charter’’ that is composed of three 

sections: petition, proposed charter, and 

a list of eligible referendum 

participants. The estimated reporting 

time for this portion of the collection 

requirement in 50 CFR part 270 is 320 

hours in total, with an average of 80 

hours to develop a petition, 200 hours 

to develop a proposed charter, and 40 

hours to develop a list of eligible 

referendum participants. All other 

information requirements are imposed 

on the Councils, once they are 

established. The estimated reporting 

time for these information requirements 

varies from 1 to 120 hours per response. 

Council submission of an annual plan, 

an annual budget, and an annual 

financial report are estimated at 120 

hours each for a total of 360 hours. 

Council submissions of semi-annual 

progress reports is estimated at 40 hours 

twice a year, notice of assessments at 20 

hours once a year, list of Council 

nominations following a favorable 

referendum at 20 hours once a year, and 

meeting notices at 1–2 hours once a 

year. Other submissions are optional 

and are dependent upon the operation 

of a particular Council and its 

participants. For instance, Council 

submission of a plan to conduct a 

referendum on development of quality 

standards is estimated at 40 hours with 

no more than annual frequency. 

Additionally, assessed participants of a 

Council’s submission of an objection 

petition and/or request for refund is 

estimated at 2 hours each no more than 

6 times a year. These estimated 

reporting times include the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. 

In addition to recordkeeping and 

reporting requirements required to 

create a Council, small entities could 

also be required to complete forms 

required to administer assessment fees, 

petition for a refund of assessment fees, 

or participate in any referendum under 

a specific Council’s charter. NMFS 

believes the number of burden hours to 

small entities to meet Council 

obligations could range between 5 and 

20 hours annually. This final rule does 

not implement a seafood marketing 

program, therefore, the Paperwork 

Reduction Act requirements are not 

triggered. However, there may be a need 

for additional burden hours once a 

Council’s charter is accepted. 

A Summary of the Significant Issues 

Raised by the Public Comments in 

Response to the IRFA, a Summary of the 

Assessment of the Agency of Such 

Issues, and a Statement of Any Changes 

Made in the Final Rule as a Result of 

Such Comments 

NMFS received 15 comments from 16 

commenters on the proposed rule. Of 

these, seven comments were submitted 

either directly on the conclusions 

reached in the IRFA or on the economic 

viability of the rulemaking vis-a-vis 

small businesses. 

Comment A: Several commenters 

believed that the promotion of fishery 

exports is already supported by the 

Foreign Agricultural Service (FAS), 

United States Department of Agriculture 

(USDA), and the proposed seafood 

marketing councils may overlap with 

rulemaking specific to the FAS. 

Response: NMFS recognizes that there 

may be a slight overlap with rulemaking 

that may be specific to the functions of 

the FAS. However, NMFS believes that 

the overlaps are not significant and 

seafood marketing councils may provide 

additional benefits to constituents by 

providing unique services. Discussions 

between FAS and NMFS are ongoing to 

address any overlaps that could result 

from this rulemaking. 

Comment B: One commenter believes 

that too much Federal involvement 

strips away free market abilities from 

any individual. 

Response: The IRFA notes that the 

implementation of this final rule does 

not guarantee that all firms will benefit 

equally from a seafood promotion 

program. However, NMFS believes that 

increasing the demand for seafood 

products would only serve to enhance 

the markets for seafood via increased 

demand and increased pricing power. 

Comment C: One commenter believes 

the Council should not give money to 

one seafood at the expense of a different 

type. 

Response: NMFS is requiring seafood 

councils, as part of their planning 

process, to submit an economic analysis 

that would support Regulatory 

Flexibility Act (RFA) and Executive 

Order 12866 (E.O. 12866) analysis used 

for rulemaking to determine impacts to 

other seafood products. NMFS will not 

support marketing plans for one product 

that would significantly affect the 

profitability of firms operating in 

another seafood sector of the economy. 

If the analysis indicates potential 

impacts to small entities, the Agency 

will attempt to mitigate to the extent 

practicable adverse impacts to other 

sectors that may accrue. 

Comment D: One commenter 

disagreed with the Agency’s assertion 

that the free rider problem would be less 

significant for fisheries than agricultural 

products. 

Response: As noted in the IRFA, 

NMFS believes that relative price 

changes would be less severe in 

situations where increased supplies 

from the aggregate of firms respond to 

higher demand (also known as an elastic 

demand for most fishery products). 

However, NMFS did not state that a free 

rider problem would not exist and 

pointed out that product differentiation 

could alleviate much of the perceived 

problem. 

Comment E: One commenter believed 

that requiring analyses that would 

support RFA or E.O. 12866 analyses 

would be burdensome. 

Response: NMFS agrees that this 

would be time consuming but the 

benefits of performing these analyses 

would far outweigh the costs in regard 

to the ability to estimate the effects of 

marketing plans on small entities, 

producers of other seafood and 

agricultural products, and the general 

economy as well. 

Comment F: One commenter 

representing a regional fisheries 

marketing council noted that direct 

competition from species-specific 

Federally-guided councils would 

directly compete against their products 

and dilute their position in the 

marketplace. 

Response: See Response to Comment 

C. 

Comment G: One commenter 

representing a fishing industry sector 

believes that all firms identified as part 

of a sector should pay a mandatory fee 

regardless of whether they desire to 

participate in a council or not and 

further asserts that voluntary or ‘‘de 

facto voluntary’’ formation of seafood 

promotion councils is not what the Fish 

and Seafood Promotion Act (FSPA) 

intended. 

Response: NMFS specifically 

requested comments on whether the 

amount of funds collected through ‘‘de 

facto’’ voluntary assessments after 

considering administrative costs, 

program costs, the effect of free riders, 

and other economic considerations 

would enable Councils to develop and 

maintain marketing, assessment, and 

research programs sufficient to benefit 

both the industry and those firms 

choosing to pay ‘‘de facto’’ voluntary 

assessments. There were no comments 

received on this specific solicitation. 


cprice-sewell on PROD1PC71 with RULES
Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 18111 

Description of the Steps the Agency Has 

Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

Applicable Statutes 

There are two major provisions of this 

final rule that will minimize economic 

impacts to small entities. Firstly, the 

Agency has provided a means for a 

small entity to forego a mandatory 

assessment fee even though they may be 

listed as a participant for a proposed 

Council. By making Council 

participation voluntary, small 

businesses that believe it will not be 

cost effective to participate in a Council 

would not be required to do so. 

Consequently, these businesses could 

avoid additional cost of sales that could 

reduce or squeeze their overall profit 

margin. Secondly, the provision that 

will require Councils to submit, to 

NMFS, economic analysis of the 

impacts to small entities of proposed 

marketing and promotion plans will 

allow the Agency to mitigate to the 

extent practicable any adverse impacts 

that may accrue to participants in a 

Council, other fishery sectors, or nonfishery sectors. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Enforcement Fairness Act of 1996 states 

that, for each rule or group of related 

rules for which an agency is required to 

prepare a FRFA, the agency shall 

publish one or more guides to assist 

small entities in complying with the 

rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. There are no 

compliance issues directly associated 

with the implementation of this rule. 

However, when a petition to form a 

Council is received by the Agency, a 

copy of this published final rule with a 

cover letter informing the petitioners of 

administrative requirements for 

initiating the Council process including 

requirements for conducting a 

referendum will be provided to the 

petitioners. The cover letter will also list 

Agency contacts responsible the 

Seafood Marketing Council program. 

Copies of this final rule and cover letter 

are available from the Office of 

Sustainable Fisheries, NMFS (see 

ADDRESSES). 

List of Subjects 

15 CFR Part 902 

Reporting and recordkeeping 

requirements. 

50 CFR Part 270 

Administrative practice and 

procedure, Fish, Marketing, Seafood. 

Dated: April 4, 2007. 

William T. Hogarth, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, 15 CFR Chapter IX and 50 

CFR Chapter II are amended as follows: 

15 CFR Chapter IX 

PART 902—NOAA INFORMATION 

COLLECTION REQUIREMENTS UNDER 

THE PAPERWORK REDUCTION ACT: 

OMB CONTROL NUMBERS 

■ 1. The authority citation for part 902 

continues to read as follows: 

Authority: 44 U.S.C. 3501 et seq. 

■ 2. In § 902.1, the table in paragraph (b) 

under ‘‘50 CFR’’ is amended by adding 

new entries to read as follows: 

§ 902.1 OMB control numbers assigned 

pursuant to the Paperwork Reduction Act 

* * * * * 

(b) * * * 

CFR part or section where the 

information collection requirement is located 

Current 

OMB control number(all 

numbers 

begin with 

0648–) 

*****

50 CFR 

*****

270.3 –0556 

270.6 –0556 

270.8 –0556 

270.10 –0556 

270.12 –0556 

270.13 –0556 

270.14 –0556 

270.15 –0556 

270.19 –0556 

270.20 –0556 

270.23 –0556 

*****

■ 3. A new subchapter H consisting of 

part 270 is added to Chapter II to read 

as follows: 

50 CFR Chapter II 

SUBCHAPTER H—FISH AND SEAFOOD 

PROMOTION 

PART 270—SPECIES-SPECIFIC 

SEAFOOD MARKETING COUNCILS 

Sec. 

270.1 Scope. 

270.2 Definitions. 

270.3 Submission of application. 

270.4 Review of application. 

270.5 Conduct of referendum. 

270.6 Sector participants eligible to vote. 

270.7 Results of referendum. 

270.8 Nomination and appointment of 

Council members. 

270.9 Terms, vacancies, and removal of 

Council members. 

270.10 Responsibilities of a Council. 

270.11 Responsibilities of NMFS. 

270.12 Notice of Council meetings. 

270.13 Books, records and reports. 

270.14 Update of sector participant data. 

270.15 Quality standards. 

270.16 Deposit of funds. 

270.17 Authority to impose assessments. 

270.18 Method of imposing assessments. 

270.19 Notice of assessment. 

270.20 Payment of assessments. 

270.21 Petition of objection. 

270.22 Refunds. 

270.23 Dissolution of Councils. 

Authority: 16 U.S.C. 4001–4017 

§ 270.1 Scope. 

This part 270 describes matters 

pertaining to the establishment, 

representation, organization, practices, 

procedures, and termination of Seafood 

Marketing Councils. 

§ 270.2 Definitions. 

The following terms and definitions 

are in addition to or amplify those 

contained in the Fish and Seafood 

Promotion Act of 1986: 

Act means the Fish and Seafood 

Promotion Act of 1986 (Public Law 99–

659) and any subsequent amendments. 

Consumer education means actions 

undertaken to inform consumers of 

matters related to the consumption of 

fish and fish products. 

Council means a Seafood Marketing 

Council for one or more species of fish 

and fish products of that species 

established under section 210 of the Act 

(16 U.S.C. 4009). 

Expenditure means monetary or 

material worth of fishery products. 

Expenditure is determined at the point 

a receiver obtains product from a 

harvester or an importer obtains product 

from a foreign supplier. Value may be 

expressed in monetary units (the price 

a receiver pays to a harvester or an 

importer pays to a foreign supplier). 

Fiscal year means any 12–month 

period as NMFS may determine for each 

Council. 

Fish means finfish, mollusks, 

crustaceans, and all other forms of 

aquatic animal life used for human 

consumption; the term does not include 

marine mammals and seabirds. 

Harvester means any person in the 

business of catching or growing fish for 

purposes of sale in domestic or foreign 

markets. 


cprice-sewell on PROD1PC71 with RULES
18112 Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 

Importer means any person in the 

business of importing fish or fish 

products from another country into the 

United States and its territories, as 

defined by the Act, for commercial 

purposes, or who acts as an agent, 

broker, or consignee for any person or 

nation that produces, processes or 

markets fish or fish products outside of 

the United States for sale or for other 

commercial purposes in the United 

States. 

Marketer means any person in the 

business of selling fish or fish products 

in the wholesale, export, retail, or 

restaurant trade, but whose primary 

business function is not the processing 

or packaging of fish or fish products in 

preparation for sale. 

Marketing and promotion means any 

activity aimed at encouraging the 

consumption of fish or fish products or 

expanding or maintaining commercial 

markets for fish or fish products. 

Member means any person serving on 

any Council. 

Participant means a member of a 

sector or business identified in an 

application for a Council charter as 

being subject to the referendum or 

assessment process. 

Person means any individual, group 

of individuals, association, 

proprietorship, partnership, 

corporation, cooperative, or any private 

entity of the U.S. fishing industry 

organized or existing under the laws of 

the United States or any state, 

commonwealth, territory or possession 

of the United States who meets the 

eligibility requirements as defined in a 

proposed charter to vote in a 

referendum. 

Processor means any person in the 

business of preparing or packaging fish 

or fish products (including fish of the 

processor’s own harvesting) for sale in 

domestic or foreign markets. 

Receiver means any person who owns 

fish processing vessels and any person 

in the business of acquiring (taking title 

to) fish directly from harvesters. 

Research means any type of research 

designed to advance the image, 

desirability, usage, marketability, 

production, quality and safety of fish 

and fish products. 

Secretary means the Secretary of 

Commerce, or the Secretary’s designee. 

Sector means 

(1) The sector consisting of harvesters; 

(2) The sector consisting of importers; 

(3) The sector consisting of marketers; 

(4) The sector consisting of 

processors; 

(5) The sector consisting of receivers; 

or 

(6) The consumer sector consisting of 

persons professionally engaged in the 

dissemination of information pertaining 

to the nutritional benefits and 

preparation of fish and fish products; 

Sector participant means any 

individual, group of individuals, 

association, proprietorship, partnership, 

corporation, cooperative, or any private 

entity of the U.S. fishing industry 

organized or existing under the laws of 

the United States or any state, 

commonwealth, territory or possession 

of the United States who meets the 

eligibility requirements as defined in a 

proposed charter to vote in a 

referendum. 

Species means a fundamental 

category of taxonomic classification, 

ranking after genus, and consisting of 

animals that possess common 

characteristic(s) distinguishing them 

from other similar groups. 

Value means monetary or material 

worth of fishery products. Value is the 

difference between what a receiver is 

willing to pay for a product provided by 

a harvester and its market price or an 

importer is willing to pay for a product 

from a foreign supplier and its market 

price. Value may be expressed in 

monetary units representing consumer 

surplus or producer surplus. 

§ 270.3 Submission of application. 

(a) Persons who meet the minimum 

requirements for sector participants as 

described in the proposed charter may 

file an application with NMFS for a 

charter for a Seafood Marketing Council 

for one or more species of fish and fish 

products of that species. One signed 

original and two copies of the 

completed application package must be 

submitted to the Assistant 

Administrator for Fisheries, National 

Marine Fisheries Service, NOAA, 1315 

East-West Highway, Silver Spring, MD 

20910. Applications should not be 

bound. 

(b) The application consists of four 

parts: 

(1) A document requesting NMFS to 

establish a Council; 

(2) A proposed charter under which 

the proposed Council will operate; 

(3) A list of eligible referendum 

participants; and 

(4) Analytical documentation 

addressing requirements of applicable 

law. 

(c) Content of application—(1) 

Application or requesting document. 

The application or requesting document 

submitted by the applicants to NMFS 

requesting that the Council be 

established, to the extent practicable, 

must include the signatures or corporate 

certifications, of no less than three 

sector participants representing each 

sector identified in accordance with 

paragraph (c)(2)(v) of this section and 

who, according to the available data, 

collectively accounted for, in the 12–

month period immediately preceding 

the month in which the application was 

filed, not less than 10 percent of the 

value of the fish or fish products 

specified in the charter that were 

handled during such period in each 

sector by those who meet the eligibility 

requirements to vote in the referendum 

as defined by the application. The 

application must also include a 

statement that, if established, the 

Council will have sufficient resources 

(e.g., cash, donated office space, 

services, supplies, etc.) available for 

initial administrative expenditures 

pending collection of assessments. 

(2) Proposed charter. A proposed 

charter must contain, at a minimum, the 

following information: 

(i) The name of the Council and a 

provision proclaiming its establishment; 

(ii) A declaration of the purposes and 

objectives of the Council; 

(iii) A description of the species of 

fish and fish products, including the 

scientific and common name(s), for 

which the Council will implement 

marketing and promotion plans under 

the Act. (The American Fisheries 

Society’s ‘‘List of Common and 

Scientific Names of Fishes from the 

United States and Canada’’ (latest 

edition) or where available, an 

appropriate volume of its ‘‘List of 

Common and Scientific Names of 

Aquatic Invertebrates of the United 

States and Canada’’ (latest edition) 

should be used as the authority for all 

scientific and common names.); 

(iv) A description of the geographic 

area (state(s)) within the United States 

covered by the Council; 

(v) The identification of each sector 

and the number and terms of 

representatives for each sector that will 

be voting members on the Council. (The 

number of Council members should be 

manageable, while ensuring equitable 

geographic representation. The term for 

members will be 3 years. Initially, to 

ensure continuity, half of the members’

terms will be 2 years and half will be 

3 years. Reappointments are 

permissible.); 

(vi) The identification of those sectors 

(which must include a sector consisting 

of harvesters, a sector consisting of 

receivers, and, if subject to assessment, 

a sector consisting of importers), eligible 

to vote in the referendum to establish 

the Council; 

(vii) For each sector described under 

paragraph (c)(2)(v) of this section, a 

threshold level specifying the minimum 

requirements, as measured by income, 


cprice-sewell on PROD1PC71 with RULES
Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 18113 

volume of sales, or other relevant 

factors, that a person engaging in 

business in the sector must meet in 

order to participate in a referendum; 

(viii) A description of the rationale 

and procedures for determining 

assessment rates as provided in 

§ 270.18, based on a fixed amount per 

unit of weight or measure, or on a 

percentage of value of the product 

handled; 

(ix) The proposed rate or rates that 

will be imposed by the Council on 

receivers and, if subject to assessment, 

importers during its first year of 

operation; 

(x) The maximum amount by which 

an assessment rate for any period may 

be raised above the rate applicable for 

the immediately preceding period; 

(xi) The maximum rate or rates that 

can be imposed by a Council on 

receivers or importers during the 

operation of the Council; 

(xii) The maximum limit on the 

amount any one sector participant may 

be required to pay under an assessment 

for any period; 

(xiii) The procedures for providing 

refunds to sector participants subject to 

assessment who request the same in 

accordance with the time limits 

specified § 270.22; 

(xiv) A provision setting forth the 

voting procedures by which votes may 

be cast by proxy; 

(xv) A provision that the Council will 

have voting members representing the 

harvesting, receiving and, if subject to 

assessment, importing sectors; 

(xvi) A provision setting forth the 

definition of a quorum for making 

decisions on Council business and the 

procedures for selecting a chairperson of 

the Council; 

(xvii) A provision that members of the 

Council will serve without 

compensation, but will be reimbursed 

for reasonable expenses incurred in 

performing their duties as members of 

the Council; 

(xviii) A provision containing a 

requirement for submission to NMFS 

the criteria and supporting data for 

evaluating the annual and/or multi-year 

performance of proposed marketing 

plans and the Council’s performance; 

(xix) A provision containing a 

requirement for submission of 

documentation as requested by NMFS 

for purposes of evaluating performance 

of proposed marking plans and the 

Council’s related performance; 

(xx) Where adequate funds are not 

available, a provision containing the 

minimum number of participants 

needed for sustained operations that 

cannot receive assessment refunds; 

(xxi) A provision acknowledging that 

NMFS will have the right to participate 

in Council meetings; 

(xxii) A provision that the Council 

will conduct its activities in accordance 

with applicable NMFS requirements 

and that NMFS has final approval 

authority over proposed marketing 

plans and Council actions; 

(xxiii) A provision containing a 

requirement for the Council to arrange 

for a complete audit report to be 

conducted by an independent public 

accountant and submitted to NMFS at 

the end of each fiscal year; 

(xxiv) A provision containing a 

requirement for the Council to conduct 

a market assessment based on economic, 

market, social and demographic, and 

biological information as deemed 

necessary by NMFS; and 

(xxv) A provision containing a 

requirement for the Council to update 

the list of referendum participants on an 

annual basis. 

(3) List of referendum participants. 

The list of referendum participants, to 

the extent practicable, must identify the 

business name and address of all sector 

participants that the applicants believe 

meet the requirements for eligibility to 

vote in the referendum on the adoption 

of the proposed charter. 

(i) The list should include all sectors 

in which a sector participant meets the 

eligibility requirements to vote in a 

referendum. If a sector participant has 

more than one place of business located 

within the geographic area of the 

Council, all such places should be listed 

and the primary place of business 

should be designated. The agency will 

provide appropriate information in its 

possession of a non-proprietary nature 

to assist the applicants in developing 

the list of sector participants. 

(ii) [Reserved] 

(4) Analytical documentation. The 

applicant must address the 

requirements of the Act, implementing 

regulations, and other applicable law, 

i.e., E.O. 12866, Regulatory Flexibility 

Act, National Environmental Policy Act, 

and other law as NMFS determines 

appropriate. 

§ 270.4 Review of application. 

Within 180 days of receipt of the 

application to establish a Council, 

NMFS will: 

(a) Determine if the application is 

complete and complies with all of the 

requirements set out in § 270.3 and 

complies with all provisions of the Act 

and other applicable laws. 

(b) Identify, to the extent practicable, 

those sector participants who meet the 

requirements for eligibility to 

participate in the referendum to 

establish the Council. NMFS may 

require additional information from the 

applicants or proposed participants in 

order to verify eligibility. NMFS may 

add names to or delete names from the 

list of sector participants believed 

eligible by the applicants until the time 

of the referendum based on additional 

information received. 

(c) If NMFS finds minor deficiencies 

in an application that can be corrected 

within the 180–day review period, 

NMFS will advise the applicants in 

writing of what must be submitted by a 

specific date to correct the minor 

deficiencies. 

(d) If NMFS makes a final negative 

determination, on an application, NMFS 

will advise the applicant in writing of 

the reason for the determination. The 

applicant may submit another 

application at any time thereafter. 

NMFS then has 180 days from receipt of 

the new application to render a final 

determination on its acceptability. 

§ 270.5 Conduct of referendum. 

(a) Upon making affirmative 

determinations under § 270.4, NMFS, 

within 90 days after the date of the last 

affirmative determination, will conduct 

a referendum on the adoption of the 

proposed charter. 

(b) NMFS will estimate the cost of 

conducting the referendum, notify the 

applicants, and request that applicants 

post a bond or provide other applicable 

security, such as a cashier§ s check, to 

cover costs of the referendum. 

(c) NMFS will initially pay all costs 

of a referendum to establish a Council. 

Within two years after establishment, 

the Council must reimburse NMFS for 

the total actual costs of the referendum 

from assessments collected by the 

Council. If a referendum fails to result 

in establishment of a Council, NMFS 

will immediately recover all expenses 

incurred for conducting the referendum 

from the bond or security posted by 

applicants. In either case, such expenses 

will not include salaries of government 

employees or other administrative 

overhead, but will be limited to those 

additional direct costs incurred in 

connection with conducting the 

referendum. 

(d) No less than 30 days prior to 

holding a referendum, NMFS will: 

(1) Publish in the Federal Register the 

text of the proposed charter and the 

most complete list available of sector 

participants eligible to vote in the 

referendum; and 

(2) Provide for public comment, 

including the opportunity for a public 

meeting. 


cprice-sewell on PROD1PC71 with RULES
18114 Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 

§ 270.6 Sector participants eligible to vote. 

(a) Any participant who meets the 

minimum requirements as measured by 

income, volume of sales or other 

relevant factors specified in the 

approved charter may vote in a 

referendum. 

(b) Only one vote may be cast by each 

participant who is eligible to vote, 

regardless of the number of individuals 

that make up such ‘‘participant’’ and 

how many sectors the participant is 

engaged in. The vote may be made by 

any responsible officer, owner, or 

employee representing a participant. 

§ 270.7 Results of referendum. 

(a) Favorable vote to establish a 

Council. NMFS will, by order of 

publication in the Federal Register, 

establish the Council and approve an 

acceptable proposed charter, if the 

referendum votes which are cast in 

favor of the proposed charter constitute 

a majority of the sector participants 

voting in each and every sector. Further, 

according to the best available data, the 

majority must collectively account for, 

in the 12–month period immediately 

preceding the month in which the 

proposed charter was filed, at least 66 

percent of the value of the fish and fish 

products described in the proposed 

charter handled during such period in 

each sector by those who meet the 

eligibility requirements to vote in the 

referendum as defined by the 

applicants. 

(b) Unfavorable vote to establish a 

Council. If a referendum fails to pass in 

any sector of the proposed Council, 

NMFS will not establish the Council or 

approve the proposed charter. NMFS 

will immediately recover the cost of 

conducting the referendum according to 

§ 270.5(c). 

(c) Notification of referendum results. 

NMFS will notify the applicants of the 

results of the referendum and publish 

the results of the referendum in the 

Federal Register. 

§ 270.8 Nomination and appointment of 

Council members. 

(a) Within 30 days after a Council is 

established, NMFS will solicit 

nominations for Council members from 

the sectors represented on the Council 

in accordance with the approved 

charter. If the harvesters and receivers 

represented on the Council are engaged 

in business in two or more states, but 

within the geographic area of the 

Council, the nominations made under 

this section must, to the extent 

practicable, result in equitable 

representation for those states. 

Nominees must be knowledgeable and 

experienced with regard to the activities 

of, or have been actively engaged in the 

business of, the sector that such person 

will represent on the Council. 

Therefore, a resume will be required for 

each nominee. 

(b) In accordance with 16 U.S.C. 

4009(f), NMFS will, within 60 days after 

the end of the 30–day period, appoint 

the members of the Council from among 

the nominees. 

§ 270.9 Terms, vacancies and removal of 

Council members. 

(a) A Council term is for 3 years, 

except for initial appointments to a 

newly established Council where: 

(1) Half of the Council member terms 

will be 2 years; and 

(2) Half of the Council member terms 

will be 3 years. 

(b) A vacancy on a Council will be 

filled, within 60 days after the vacancy 

occurs, in the same manner in which 

the original appointment was made. A 

member appointed to fill a vacancy 

occurring before the expiration of the 

term for which the member’s 

predecessor was appointed will be 

appointed only for the remainder of 

such term. 

(c) Any person appointed under the 

Act who consistently fails or refuses to 

perform his or her duties properly and/ 

or participates in acts of dishonesty or 

willful misconduct with respect to 

responsibilities under the Act will be 

removed from the Council by NMFS if 

two-thirds of the members of the 

Council recommend action. All requests 

from a Council to NMFS for removal of 

a Council member must be in writing 

and accompanied by a statement of the 

reasons upon which the 

recommendation is based. 

§ 270.10 Responsibilities of a Council. 

(a) Each Council will: 

(1) Implement all terms of its 

approved charter; 

(2) Prepare and submit to NMFS, for 

review and approval under 

§ 270.11(a)(1), a marketing and 

promotion plan and amendments to the 

plan which contain descriptions of the 

projected consumer education, research, 

and other marketing and promotion 

activities of the Council; 

(3) Implement and administer an 

approved marketing and promotion plan 

and amendments to the plan; 

(4) Determine the assessment to be 

made under § 270.18 and administer the 

collection of such assessments to 

finance Council expenses described in 

paragraph (b) of this section; 

(5) Receive, investigate and report to 

NMFS accounts of violations of rules or 

orders relating to assessments collected 

under § 270.20, or quality standard 

requirements established under 

§ 270.15; 

(6) Prepare and submit to NMFS, for 

review and approval a budget (on a 

fiscal year basis) of the anticipated 

expenses and disbursements of the 

Council, including 

(i) All administrative and contractual 

expenses; 

(ii) The probable costs of consumer 

education, research, and other 

marketing and promotion plans or 

projects; 

(iii) The costs of the collection of 

assessments; and 

(iv) The expense of repayment of the 

costs of each referendum conducted in 

regard to the Council. 

(7) Comply with NMFS requirements, 

and prepare and submit to NMFS for 

review, evaluation, and verification of 

results and analysis an annual market 

assessment and related analytical 

documentation that is based on 

economic, market, social, demographic, 

and biological information as deemed 

necessary by NMFS; 

(8) Maintain books and records, 

prepare and submit to NMFS reports in 

accordance with respect to the receipt 

and disbursement of funds entrusted to 

it, and submit to NMFS a completed 

audit report conducted by an 

independent auditor at the end of each 

fiscal year; 

(9) Reimburse NMFS for the expenses 

incurred for the conduct of the 

referendum to establish the Council or 

any subsequent referendum to terminate 

the Council that fails; 

(10) Prepare and submit to NMFS 

report or proposals as the Council 

determines appropriate to further the 

purposes of the Act. 

(b) Funds collected by a Council 

under § 270.17 will be used by the 

Council for—

(1) Research, consumer education, 

and other marketing and promotion 

activities regarding the quality and 

marketing of fish and fish projects; 

(2) Other expenses, as described in 

§ 270.10(a)(1); 

(3) Such other expenses for the 

administration, maintenance, and 

functioning of the Council as may be 

authorized by NMFS; and 

(4) Any reserve fund established 

under paragraph (e)(4) of this section 

and any administrative expenses 

incurred by NMFS specified as 

reimbursable under this Part. 

(c) Marketing and promotion plans 

and amendments to such plans prepared 

by a Council under paragraph(a)(2) of 

this section will be designed to increase 

the general demand for fish and fish 

products described in accordance with 

§ 270.3(c)(2)(iii) by encouraging, 


cprice-sewell on PROD1PC71 with RULES
Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 18115 

expanding, and improving the 

marketing, promotion and utilization of 

such fish and fish products, in domestic 

or foreign markets, or both, through 

consumer education, research, and other 

marketing and promotion activities. 

(d) Consumer education and other 

marketing and promotion activities 

carried out by a Council under a 

marketing and promotion plan and 

amendments to a plan may not contain 

references to any private brand or trade 

name and will avoid the use of 

deceptive acts or practices in promoting 

fish or fish products or with respect to 

the quality, value, or use of any 

competing product or group of products. 

(e) Authority of a Council. A Council 

may: 

(1) Sue and be sued; 

(2) Enter into contracts; 

(3) Employ and determine the salary 

of an executive director who may, with 

the approval of the Council employ and 

determine the salary of such additional 

staff as may be necessary; 

(4) Establish a reserve fund from 

monies collected and received under 

§ 270.17 to permit an effective and 

sustained program of research, 

consumer education, and other 

marketing and promotion activities 

regarding the quality and marketing of 

fish and fish products in years when 

production and assessment income may 

be reduced, but the total reserve fund 

may not exceed the amount budgeted 

for the current fiscal year of operation. 

(f) Amendment of a charter. A Council 

may submit to NMFS amendments to 

the text of the Council’s charter. Any 

proposed amendments to a charter will 

be approved or disapproved in the same 

manner as the original charter was 

approved under § 270.4 and § 270.5 

with the exception of § 270.4(b). 

§ 270.11 Responsibilities of NMFS. 

(a) In addition to the duties prescribed 

under 16 U.S.C. 4009, NMFS will: 

(1) Participate in Council meetings 

and review, for consistency with the 

provisions of 50 CFR part 270 and other 

applicable law, and approve or 

disapprove, marketing and promotion 

plans and budgets within 60 days after 

their submission by a Council; 

(2) Immediately notify a Council in 

writing of the disapproval of a 

marketing and promotion plan or 

budget, together with reasons for such 

disapproval; 

(3) Issue orders and amendments to 

such orders that are necessary to 

implement quality standards under 

§ 270.15; 

(4) Promulgate regulations necessary 

to carry out the purposes of this chapter; 

(5) Enforce the provisions of the Act; 

(6) Make all appointments to Councils 

in accordance with § 270.8 and the 

approved Council charter; 

(7) Approve the criteria and time 

frames under which a Council’s 

performance will be evaluated; and 

(8) Implement the provisions of 16 

U.S.C. 4001 et seq. in accordance with 

the available financial and management 

resources NMFS determines can be 

utilized. 

(b) NMFS may provide, on a 

reimbursable or other basis, such 

administrative or technical assistance as 

a Council may request for purposes of 

the initial organization and subsequent 

operation of the Council. However, a 

Council is responsible for the cost of 

preparing and submitting information 

(e.g., reports, evaluation data, etc.) 

requested by NMFS. 

§ 270.12 Notice of Council meetings. 

The Council will give NMFS the same 

notice of its meetings as it gives to its 

members. NMFS will have the right to 

participate in all Council meetings. 

§ 270.13 Books, records and reports. 

(a) The Council must submit to NMFS 

the following documents according to 

the schedule approved in the Council’s 

charter: 

(1) A marketing assessment and 

promotion plan; 

(2) A financial report with respect to 

the receipt and disbursement of funds; 

(3) An audit report conducted by an 

independent public accountant; and 

(4) Other reports or data NMFS 

determines necessary to evaluate the 

Council’s performance and verify the 

results of the market assessment and 

promotion plan.. 

(b) All Council records, reports, and 

data must be maintained by the Council 

for a minimum of 3 years, even if the 

Council is terminated. 

§ 270.14 Update of sector participant data. 

The Council will submit to NMFS at 

the end of each fiscal year an updated 

list of sector participants who meet the 

minimum requirements for eligibility to 

participate in a referendum as stated in 

the approved charter. 

§ 270.15 Quality standards. 

(a) Each Council may develop and 

submit to NMFS for approval or, upon 

the request of a Council, NMFS will 

develop quality standards for the 

species of fish or fish products 

described in the approved charter. Any 

quality standard developed under this 

paragraph must be consistent with the 

purposes of the Act. 

(b) A quality standard developed 

under paragraph (a) of this section may 

be adopted by a Council by a majority 

of its members following a referendum 

conducted by the Council among sector 

participants of the concerned sector(s). 

In order for a quality standard to be 

brought before Council members for 

adoption, the majority of the sector 

participants of the concerned sector(s) 

must vote in favor of the standard. 

Further, according to the best available 

data, the majority must collectively 

account for, in the 12–month period 

immediately preceding the month in 

which the referendum is held, not less 

than 66 percent of the value of the fish 

or fish products described in the charter 

that were handled during such period in 

that sector by those who meet the 

eligibility requirements to vote in the 

referendum as defined by the 

petitioners. 

(c) The Council must submit a plan to 

conduct the referendum on the quality 

standards to NMFS for approval at least 

60 days in advance of such referendum 

date. The plan must consist of the 

following: 

(1) Date(s) for conducting the 

referendum; 

(2) Method (by mail or in person); 

(3) Copy of the proposed notification 

to sector participants informing them of 

the referendum; 

(4) List of sector participants eligible 

to vote; 

(5) Name of individuals responsible 

for conducting the referendum; 

(6) Copy of proposed ballot package to 

be used in the referendum; and 

(7) Date(s) and location of ballot 

counting. 

(d) An official observer appointed by 

NMFS will be allowed to be present at 

the ballot counting and any other phase 

of the referendum process, and may take 

whatever steps NMFS deems 

appropriate to verify the validity of the 

process and results of the referendum. 

(e) Quality standards developed under 

this section of the regulations must, at 

a minimum, meet Food and Drug 

Administration (FDA) minimum 

requirements for fish and fish products 

for human consumption. 

(f) Quality standards must be 

consistent with applicable standards of 

the U.S. Department of Commerce 

(National Oceanic and Atmospheric 

Administration) or other recognized 

Federal standards and/or specifications 

for fish and fish products. 

(g) No quality standard adopted by a 

Council may be used in the advertising 

or promotion of fish or fish products as 

being inspected by the United States 

Government unless the standard 

requires sector participants to be in the 

U.S. Department of Commerce voluntary 

seafood inspection program. 


cprice-sewell on PROD1PC71 with RULES
18116 Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 

(h) The intent of quality standards 

must not be to discriminate against 

importers who are not members of the 

Council. 

(i) Quality standards must not be 

developed for the purpose of creating 

non-tariff barriers. Such standards must 

be compatible with U.S. obligations 

under the General Agreement on Tariffs 

and Trade, or under other international 

standards deemed acceptable by NMFS. 

(j) The procedures applicable to the 

adoption and the operation of quality 

standards developed under this 

subchapter also apply to subsequent 

amendments or the termination of such 

standards. 

(k) With respect to a quality standard 

adopted under this section, the Council 

must develop and file with NMFS an 

official identifier in the form of a 

symbol, stamp, label or seal that will be 

used to indicate that a fish or fish 

product meets the quality standard at 

the time the official identifier is affixed 

to the fish or fish product, or is affixed 

to or printed on the packaging material 

of the fish or fish product. The use of 

such identifier is governed by § 270.15. 

§ 270.16 Deposit of funds. 

All funds collected or received by a 

Council under this section must be 

deposited in an appropriate account in 

the name of the Council specified in its 

charter. Funds eligible to be collected or 

received by a Council must be limited 

to those authorized under the Act. 

(a) Pending disbursement, under an 

approved marketing plan and budget, 

funds collected through assessments 

authorized by the Act must be deposited 

in any interest-bearing account or 

certificate of deposit of a bank that is a 

member of the Federal Reserve System, 

or in obligations fully guaranteed as to 

principal and interest by the United 

States Government. 

(b) The Council may, however, 

pending disbursement of these funds, 

invest in risk-free, short-term, interestbearing instruments. 

(1) Risk-free. All investments must be 

insured or fully collateralized with 

Federal Government securities. In the 

absence of collateral, accounts 

established at financial institutions 

should, in aggregate, total less than 

$100,000 to assure both principal and 

interest are federally insured in full. 

(2) Short-term. Generally, all 

investments should be for a relatively 

short time period (one year or less) to 

assure that the principal is maintained 

and readily convertible to cash. 

(3) Collateralization. Investments 

exceeding the $100,000 insurance 

coverage level must be fully 

collateralized by the financial 

institution. 

(i) Collateral must be pledged at face 

value and must be pledged prior to 

sending funds to the institution. 

(ii) Government securities are 

acceptable collateral. Declining balance, 

mortgage backed securities such as 

Government National Mortgage 

Association (GNMA) and Federal 

National Mortgage Association (FNMA) 

are not acceptable collateral. 

(iii) If an account has been 

established, collateral may be held at 

the local Federal Reserve Bank. 

Otherwise, another depository must 

hold the collateral. 

§ 270.17 Authority to impose 

assessments. 

A Council will impose and administer 

the collection of the assessments that 

are necessary to pay for all expenses 

incurred by the Council in carrying out 

its functions under 50 CFR part 270. 

§ 270.18 Method of imposing 

assessments. 

Assessments will be imposed on 

sector participants in the receiving 

sector or the importing sector or both as 

specified in an approved Council 

charter. Assessment rates will be based 

on value that may be expressed in 

monetary units or units of weight or 

volume. 

(a) An assessment on sector 

participants in the receiving sector will 

be in the form of a percentage of the 

value or a fixed amount per unit of 

weight or volume of the fish described 

in the charter when purchased by such 

receivers from fish harvesters. 

(b) An assessment on sector 

participants who own fish processing 

vessels and harvest the fish described in 

the charter will be in the form of a 

percentage of the value or on a fixed 

amount per unit of weight or volume of 

the fish described in the charter that is 

no less than the value if such fish had 

been purchased by a receiver other than 

the owner of the harvesting vessel. 

(c) An assessment on sector 

participants in the importing sector will 

be in the form of a percentage of the 

value that an importer pays to a foreign 

supplier, as determined for the purposes 

of the customs laws, or a fixed amount 

per unit of weight or volume, of the fish 

or fish products described in the charter 

when entered or withdrawn from 

warehouse for consumption, in the 

customs territory of the United States by 

such sector participants. 

(d) A Council may not impose an 

assessment on any person that was not 

eligible to vote in the referendum 

establishing the Council by reason of 

failure to meet the requirements 

specified under unless that person, after 

the date on which the referendum is 

held, meets the requirements of section. 

(e) Any person may make voluntary 

payments or in-kind contributions to a 

Council for purposes of assisting the 

Council in carrying out its functions. 

§ 270.19 Notice of assessment. 

(a) The Council must serve each 

person subject to assessment with notice 

that the assessment is due. The notice 

of assessment must contain: 

(1) A specific reference to the 

provisions of the Act, regulations, 

charter and referendum that authorize 

the assessment; 

(2) The amount of the assessment; 

(3) The period of time covered by the 

assessment; 

(4) The date the assessment is due and 

payable, which will not be earlier than 

30 days from the date of the notice; 

(5) The form(s) of payment; and 

(6) To whom and where the payment 

must be made. 

(b) The notice must advise such 

person of his or her right to seek review 

of the assessment by filing a written 

petition of objection with NMFS at any 

time during the time period to which 

the assessment applies, including the 

right to request a hearing on the 

petition. The notice must state that the 

petition of objection must be filed in 

accordance with the procedures in 

§ 270.21. 

(c) The notice must also advise such 

persons of his or her right to a refund 

of the assessment as provided in 

§ 270.22. The notice must state that a 

refund may be requested for not less 

than 90 days from such collection, and 

provide that the Council will make the 

refund within 60 days after the request 

for the refund is requested. 

§ 270.20 Payment of assessments. 

Persons subject to an assessment 

would be required to pay the assessment 

on or before the date due, unless they 

have demanded a refund or filed a 

petition of objection with NMFS under 

§ 270.21. However, persons who have 

demanded a refund under § 270.22 or 

filed a petition of objection under 

§ 270.21 may submit proof of these 

actions in leu of payment. In the case of 

a petition of objection, NMFs will 

inform the Council and the petitioner of 

its finding at which time petitioner must 

pay the revised assessment if applicable. 

§ 270.21 Petition of objection. 

(a) Filing a petition. Any person 

issued a notice of assessment under 


cprice-sewell on PROD1PC71 with RULES
Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 18117 

§ 270.19 may request that NMFS modify 

or take other appropriate action 

regarding the assessment or promotion 

plan by filing a written petition of 

objection with NMFS. Petitions of 

objection may be filed: 

(1) Only if the petitioner determines 

one or more of the following criteria is 

not in accordance with the law: 

(i) The assessment; 

(ii) The plan upon which the 

assessment is based; or 

(iii) Any obligation imposed on the 

petitioner under the plan. 

(2) Only during the time period to 

which the assessment applies. 

(b) Contents of the petition of 

objection. A petition must be addressed 

to Assistant Administrator for Fisheries, 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910, and must contain the following: 

(1) The petitioner’s correct name, 

address, and principal place of business. 

If the petitioner is a corporation, this 

must be stated, together with the date 

and state of incorporation, and the 

names, addresses, and respective 

positions of its officers; if a partnership, 

the date and place of formation and the 

name and address of each partner; 

(2) The grounds upon which the 

petition of objection is based, including 

the specific terms or provisions of the 

assessment, the marketing and 

promotion plan, or obligation imposed 

by the plan, to which the petitioner 

objects; 

(3) A full statement of the facts upon 

which the petition is based, set forth 

clearly and concisely, accompanied by 

any supporting documentation; 

(4) The specific relief requested; and 

(5) A statement as to whether or not 

the petitioner requests a hearing. 

(c) Notice to Council. NMFS will 

promptly furnish the appropriate 

Council with a copy of the petition of 

objection. 

(d) Opportunity for informal hearing. 

(1) Any person filing a petition of 

objection may request an informal 

hearing on the petition. The hearing 

request must be submitted with the 

petition of objection. 

(2) If a request for hearing is timely 

filed, or if NMFS determines that a 

hearing is advisable, NMFS will so 

notify the petitioner and the Council. 

NMFS will establish the applicable 

procedures, and designate who will be 

responsible for conducting a hearing. 

The petitioner, the Council, and any 

other interested party, may appear at the 

hearing in person or through a 

representative, and may submit any 

relevant materials, data, comments, 

arguments, or exhibits. NMFS may 

consolidate two or more hearing 

requests into a single proceeding. 

(3) Final decision. Following the 

hearing, or if no hearing is held, as soon 

as practicable, NMFS will decide the 

matter and serve written notice of the 

decision on the petitioner and the 

Council. NMFS’s decision will be based 

on a consideration of all relevant 

documentation and other evidence 

submitted, and will constitute the final 

administrative decision and order of the 

agency. NMFS will have the discretion 

to waive collection of a contested 

assessment or revise, modify, or alter 

the assessment amount based on a 

Council method of assessment. 

§ 270.22 Refunds. 

(a) Notwithstanding any other 

provision of the Act, any person who 

pays an assessment under the Act may 

demand and must promptly receive 

from the Council a refund of such 

assessment. A demand for refund must 

be made in accordance with procedures 

in the approved charter and within such 

time as will be prescribed by the 

Council and approved by NMFS. 

Procedures to provide such a refund 

must be established before any such 

assessment may be collected. Such 

procedures must allow any person to 

request a refund 90 days or more from 

such collection, and provide that such 

refund must be made within 60 days 

after demand for such refund is made. 

(b) Once a refund has been requested 

by a sector participant and paid by the 

Council, that sector participant may no 

longer participate in a referendum or 

other business of the Council during the 

remainder of the assessment rate period. 

Future assessments will only be sent to 

such a sector participant at the request 

of the sector participant. If assessments 

are paid during a future assessment rate 

period and no refund is requested, that 

sector participant may again participate 

in a referendum or other business of the 

Council. 

§ 270.23 Dissolution of Councils. 

(a) Petition for termination. (1) A 

petition to terminate a Council may be 

filed with NMFS by no less than three 

sector participants in any one sector. 

Any petition filed under this subsection 

must be accompanied by a written 

document explaining the reasons for 

such petition. 

(2) If NMFS determines that a petition 

filed under paragraph (a)(1) of this 

section is accompanied by the 

signatures, or corporate certifications, of 

no less than three sector participants in 

the sector referred to in paragraph (a)(1) 

of this section who collectively 

accounted for, in the 12–month period 

immediately preceding the month in 

which the petition was filed, not less 

than 20 percent of the value of the fish 

or fish products described in 

§ 270.3(c)(2)(iii) that were handled by 

that sector during the period, NMFS 

within 90 days after the determination, 

will conduct a referendum for 

termination of the Council among all 

sector participants in that sector. 

(3) Not less than 30 days prior to 

holding a referendum, NMFS will 

publish an announcement in the 

Federal Register of the referendum, 

including an explanation of the reasons 

for the petition for termination filed 

under paragraph (a)(1) of this section 

and any other relevant information 

NMFS considers appropriate. 

(4) If the referendum votes which are 

cast in favor of terminating the Council 

constitute a majority of the sector 

participants voting and the majority, in 

the period in paragraph (a)(2) of this 

section, collectively accounted for not 

less than 66 percent of the value of such 

fish and fish products that were handled 

during such period by the sector in 

paragraph (a)(1) of this section, NMFS 

will by order of publication terminate 

the Council effective as of a date by 

which the affairs of the Council may be 

concluded on an orderly basis. 

(5) NMFS initially will pay all costs 

of a referendum conducted in § 270.23. 

Prior to conducting such a referendum, 

NMFS will require petitioners to post a 

bond or other security acceptable to 

NMFS in an amount which NMFS 

determines to be sufficient to pay any 

expenses incurred for the conduct of the 

referendum. 

(6) If a referendum conducted under 

§ 270.23 fails to result in the termination 

of the Council, NMFS will immediately 

recover the amount of the bond posted 

by the petitioners under § 270.23(a)(5). 

(7) If a referendum conducted under 

this subsection results in the 

termination of the Council, NMFS will 

recover the expenses incurred for the 

conduct of the referendum from the 

account established by the Council. If 

the amount remaining in such account 

is insufficient for NMFS to recover all 

expenses incurred for the conduct of the 

referendum, NMFS will recover the 

balance of the expenses from the 

petitioners that posted a bond under 

paragraph (a)(5) of this section. 

(b) Payment of remaining funds. If a 

Council is terminated under section 

§ 270.23(a)(4), NMFS, after recovering 

all expenses incurred for the conduct of 

the referendum under paragraph (a) of 

this section, will take such action as is 

necessary and practicable to ensure that 

moneys remaining in the account 

established by the Council under 


cprice-sewell on PROD1PC71 with RULES
18118 Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Rules and Regulations 

§ 270.17 are paid on a prorated basis to 

the sector participants from whom those 

moneys were collected under § 270.20. 

[FR Doc. E7–6751 Filed 4–10–07; 8:45 am] 

BILLING CODE 3510–22–S 

TENNESSEE VALLEY AUTHORITY 

18 CFR Part 1310 

Administrative Cost Recovery 

AGENCY: Tennessee Valley Authority 

(TVA). 

ACTION: Final rule. 

SUMMARY: TVA is amending its 

administrative cost recovery regulations 

by eliminating cost recovery exemptions 

for the following: Conveyances of land 

pursuant to Section 4(k)(d) of the 

Tennessee Valley Authority Act of 1933, 

as amended (16 U.S.C. 831c(k)(d)); TVA 

phosphate land transactions; and 

permits and licenses for use of TVA 

land by distributors of TVA power. 

The implementation of this rule 

amendment will allow TVA to recover 

more of its administrative costs incurred 

in processing certain actions from those 

who directly benefit from the actions. 

EFFECTIVE DATE: April 11, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Nancy Greer, Senior Manager, Process 

and Performance Management, (865) 

632–3339. 

SUPPLEMENTARY INFORMATION: In order to 

help ensure that TVA land management 

and permitting activities are selfsustaining to the full extent possible, the 

agency is amending its administrative 

cost recovery regulations by eliminating 

certain mandatory cost recovery 

exemptions. This determination is 

consistent with the objectives of 

increasing efficiency and recovering the 

cost of government services from those 

who most directly benefit from the 

services. 

TVA is amending its administrative 

cost recovery regulation by eliminating 

the following exemptions: Conveyances 

of land pursuant to Section 4(k)(d) of 

the Tennessee Valley Authority Act of 

1933, as amended (16 U.S.C. 831c(k)(d)); 

TVA phosphate land transactions; and 

permits and licenses for use of TVA 

land by distributors of TVA power. 

TVA is also amending the rule to 

reflect new organizational changes 

within the agency. The terms ‘‘Vice 

President of Land Management’’ or 

‘‘Manager of Power Properties’’ are to be 

amended to read ‘‘Senior Manager of the 

TVA organization that manages the 

land.’’

TVA published a proposed rule on 

April 14, 2006. TVA considers this final 

rule to be a nonsubstantive rule relating 

to agency management and public 

property pursuant to 5 U.S.C. 553(a)(2). 

However, TVA provided a thirty day 

public comment period to hear from any 

interested parties. No comments were 

received. Since this rule relates to 

services provided by the agency, a 

regulatory flexibility analysis is not 

required. 

List of Subjects in 18 CFR Part 1310 

Government property, Hunting. 

For the reasons set out in the 

preamble, TVA amends 18 CFR part 

1310 as follows: 

PART 1310—ADMINISTRATIVE COST 

RECOVERY 

■ 1. The authority citation for part 1310 

continues to read as follows: 

Authority: 16 U.S.C. 831–831dd; 31 U.S.C. 

9701. 

■ 2. Revise paragraphs (a) introductory 

text and (b) of § 1310.2 to read as 

follows: 

§ 1310.2 Application. 

(a) General. TVA will undertake the 

following actions only upon the 

condition that the applicant pay to TVA 

such administrative charges as the 

Senior Manager of the TVA organization 

that administers the land or permit 

being considered (hereinafter 

‘‘responsible land manager’’), as 

appropriate, shall assess in accordance 

with § 1310.3; provided, however, that 

the responsible land manager may 

waive payment where he/she 

determines that there is a corresponding 

benefit to TVA or that such waiver is 

otherwise in the public interest. 

* * * * * 

(b) Exemption. An administrative 

charge shall not be made for the 

following actions: 

(1) Releases of unneeded mineral right 

options. 

(2) TVA mineral transactions. 

* * * * * 

Authority: 16 U.S.C. 831–831dd (2000 & 

Supp. III 2003). 

Dated: March 2, 2007. 

Kathryn J. Jackson, 

Executive Vice President, River System 

Operations & Environment and 

Environmental Executive, Tennessee Valley 

Authority. 

[FR Doc. 07–1702 Filed 4–10–07; 8:45 am] 

BILLING CODE 8120–08–M 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 524 

Ophthalmic and Topical Dosage Form 

New Animal Drugs; Mupirocin 

Ointment 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Final rule. 

SUMMARY: The Food and Drug 

Administration (FDA) is amending the 

animal drug regulations to reflect 

approval of an abbreviated new animal 

drug application (ANADA) filed by 

Altana, Inc. The ANADA provides for 

veterinary prescription use of mupirocin 

ointment for the treatment of bacterial 

skin infections in dogs. 

DATES: This rule is effective April 11, 

2007. 

FOR FURTHER INFORMATION CONTACT: John 

K. Harshman, Center for Veterinary 

Medicine (HFV–104), Food and Drug 

Administration, 7500 Standish Pl., 

Rockville, MD 20855, 301–827–0169, email: john.harshman@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: Altana, 

Inc., 60 Baylis Rd., Melville, NY 11747, 

filed ANADA 200–418 that provides for 

veterinary prescription use of MURICIN 

(mupirocin) Ointment 2% for the 

treatment of bacterial skin infections in 

dogs. Altana, Inc.’s MURICIN Ointment 

2% is approved as a generic copy of 

Pfizer, Inc.’s BACTODERM Ointment 

approved under new animal drug 

application (NADA) 140–839. The 

ANADA is approved as of March 8, 

2007, and the regulations are amended 

in 21 CFR 524.1465 to reflect the 

approval. 

In accordance with the freedom of 

information provisions of 21 CFR part 

20 and 21 CFR 514.11(e)(2)(ii), a 

summary of safety and effectiveness 

data and information submitted to 

support approval of this application 

may be seen in the Division of Dockets 

Management (HFA–305), Food and Drug 

Administration, 5630 Fishers Lane, rm. 

1061, Rockville, MD 20852, between 9 

a.m. and 4 p.m., Monday through 

Friday. 

The agency has determined under 21 

CFR 25.33(a)(1) that this action is of a 

type that does not individually or 

cumulatively have a significant effect on 

the human environment. Therefore, 

neither an environmental assessment 

nor an environmental impact statement 

is required. 

This rule does not meet the definition 

of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because 


cprice-sewell on PROD1PC71 with RULES